Coates vs. EC&R Development, L.L.C., et al

Filing 92

ORDER GRANTING 76 Motion to exclude. Signed by Judge David A. Ezra. (aej)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

HUGH COATES,
Plaintiff,
vs.
EC&R DEVELOPMENT, L.L.C., A
DELAWARE LIMITED LIABILITY
COMPANY; TETRA TECH
CONSTRUCTION, INC.; and
ANACACHO WIND FARM, LLC,
Defendants.

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CV. NO. SA-13-CV-255-DAE

ORDER GRANTING TETRA TECH’S MOTON TO EXCLUDE ASSERTIONS
OF CRIMINAL CONDUCT
On December 7, 2015, the Court heard oral argument on the Motion
to Exclude Assertions of Criminal Conduct (Dkt. # 76) filed by Defendant Tetra
Tech Construction, Inc. (“Tetra” or “Defendant”). Michael Choyke, Esq.,
appeared on behalf of Defendant; Thomas Hall, Esq., appeared on behalf of
Plaintiff Hugh Coates (“Coates” or “Plaintiff”). After careful consideration of the
memoranda in support of and in opposition to the motion, and in light of the

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parties’ arguments at the hearing, the Court, for the reasons that follow, GRANTS
Defendant’s Motion to Exclude Assertions of Criminal Conduct. (Dkt. # 76).
FACTS
Plaintiff is a rancher who has run a cattle operation on the Mitchell
Circle Bar Ranch (“Mitchell Ranch” or the “Property”) pursuant to a Grazing
Lease since 1976. (“Compl.,” Dkt. # 1, ¶¶ 15, 21; “Agreemt.,” Dkt. # 1, Ex. A, at
1.) Plaintiff raises cattle, horses, and other livestock on the Property. (Compl.
¶¶ 15–16.) Landowner Tom Mitchell, through his successor in interest Mitchell
Ranch, entered into an Option agreement with EC&R Development (“EC&R”) on
May 1, 2007, granting EC&R and its assigns a Wind Lease to construct, install,
operate, and maintain a wind farm on the Mitchell Ranch, the same property leased
by Plaintiff. (Agreemt. at 1–2.) Plaintiff renewed his Grazing Lease on the
Mitchell Ranch on July 26, 2010. (Compl. ¶ 6.) On the same day, Plaintiff entered
into a Subordination and Non-Disturbance Agreement with Mitchell Ranch and
EC&R, subordinating Plaintiff’s rights under the Grazing Lease to the rights
associated with the Wind Lease, and agreeing not to “disturb or unreasonably
interfere with . . . possession, rights, or interests under the Option and the Wind
Lease.” (Agreemt. at 2–3.)
According to Plaintiff, Mitchell’s agreement with EC&R permitted
EC&R, by and through its subsidiary, Anacacho Wind Farm, LLC (“Anacacho”) to
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construct and operate fifty-one wind turbine generators pursuant to the Wind
Lease. (Compl. ¶ 6.) Anacacho entered into a construction agreement with Tetra
to assist in constructing the wind turbine generators. (Id. ¶ 7.) Anacacho and Tetra
allegedly cut some interior fences on Mitchell Ranch during construction. (Id.)
Further, Plaintiff maintains that Tetra cut perimeter fences on the Property. (Id.) 1
According to Plaintiff, the damage to interior and perimeter fences allowed his
livestock both to escape the Property and to breed inappropriately with other
livestock. (Id.) During discovery, Sheriff Leland Burgess offered deposition
testimony that cutting a fence could constitute “criminal mischief” in an instance
where the person responsible for cutting the fence was trespassing on the property.
(Dkt. # 76, Ex. 1, at 32–33.)
On August 28, 2015, Tetra filed the instant Motion to Exclude
Assertions of Criminal Conduct (Dkt. # 76), as well as a second, identical, Motion
to Exclude Assertions of Criminal Conduct (Dkt. # 75).2 Tetra seeks to exclude
any statement, reference, or suggestion that Tetra Tech or its employees engaged in
any criminal conduct while constructing the wind farm. (Dkt. # 76.)

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Plaintiff claims that several of the openings in both the interior and perimeter
fences were over sixty feet wide. (Compl. ¶ 7.) Plaintiff further claims that the
cuts were not repaired “for months.” (Id.)
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The court will consider only the second of the two identical motions, and denies
the first Motion to Exclude Assertions of Criminal Conduct as moot. (Dkt. # 75.)
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LEGAL STANDARD
Relevance and admissibility of evidence or testimony is evaluated
pursuant to standards set forth in Federal Rules of Evidence 401, 402, and 403.
“Evidence is relevant if it has any tendency to make a fact more or less probable
than it would be without the evidence and the fact is of consequence in
determining the action.” Fed. R. Evid. 401. This court has “broad discretion” to
determine whether evidence is relevant. Muzyka v. Remington Arms Co., Inc.,
774 F.2d 1309, 1313 (5th Cir. 1985); Young v. Ill. Cent. Gulf R.R. Co., 618 F.2d
332, 337 (5th Cir. 1980). The relevance bar is a low bar, and “the federal rules and
practice favor the admission of evidence rather than its exclusion if it has any
probative value at all. Young, 618 F.2d at 337. If a party is able to demonstrate
that evidence is relevant and material, such that it meets the “relevance” standard
of Federal Rule of Evidence 401, the evidence is presumed to be admissible, unless
the “Constitution; a federal statute; [the Federal Rules of Evidence]; or other rules
prescribed by the Supreme Court” declare otherwise. Fed. R. Evid. 402.
However, even if the evidence is not excluded pursuant to Federal
Rule of Evidence 402, the Court may still exclude this evidence if it determines the
“probative value” of the evidence “is substantially outweighed by the danger of
unfair prejudice, confusing the issues,” or if the admission of the evidence will
“wast[e] time.” Fed. R. Evid. 403. Accordingly, a court must determine whether
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potentially prejudicial evidence is admissible by balancing the prejudicial effect of
the evidence against any probative value the evidence may have. See Jackson v.
Firestone Tire & Rubber Co., 788 F.2d 1070, 1075 (5th Cir. 1986).
ANALYSIS
Plaintiff argues that the evidence of alleged criminal conduct is
relevant for two reasons: first, Plaintiff claims that the Sheriff’s testimony that
fence-cutting could constitute criminal activity “is relevant to issues concerning
why Hugh Coates did not report the cutting of the fences to law enforcement
officials and others,” and explains Coates’ failure to report his missing cattle to law
enforcement officials. (Dkt. # 86 at 1.) Second, Plaintiff argues that the evidence
is relevant to the issue of gross negligence. (Id.)
A.

Relevance of Criminal Conduct to the Issue of Coates’ Failure to Report Cut
Fences to Law Enforcement
The Plaintiff states that he did not report the missing cattle to law

enforcement in part because he did not know Tetra was trespassing on its land, and
therefore cutting fences in violation of the law.
While the relevance bar pursuant to Federal Rule of Evidence 401 is
low, it is still a bar preventing admission of irrelevant evidence. References to the
Sherriff’s testimony regarding alleged criminal conduct are not relevant to
demonstrate Plaintiff’s lack of knowledge that the conduct could be criminal.
Further, references to the Sherriff’s testimony are not relevant to explaining
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Plaintiff’s failure to report his missing cattle to law enforcement. Accordingly,
Plaintiff has failed to demonstrate that the evidence is relevant and admissible as
evidence under Federal Rule of Evidence 401.
Assuming, arguendo, that the potential criminality of Tetra’s conduct
is relevant, this evidence would still be excluded under Federal Rule of Evidence
403.3 Whether or not Tetra’s conduct could even be classified as criminal turns on
a determination as to whether Tetra’s employees were trespassing on the Property
when they allegedly cut the fences. Tetra claims it was present on the Mitchell
Ranch pursuant to contract, and therefore could not be trespassing; Tetra submitted
the “Balance of Plant Agreement” entered into with Anacacho as evidence that it
had contractual permission to be present on the Property. (Dkt. # 76, Ex. 2.) This
agreement requires Mitchell Ranch to “provide to [Tetra] access to the Project Site
and sufficient land within the Project Site to enable Contractor to perform the
Work in accordance with the Road and Staging Area Requirements.” (Doc. # 76,
Ex. 2, §§ 4.1(b) & 4.2(e).) The agreement defines Road and Staging Area
Requirements as “those road and staging area requirements specified in Exhibits A
and B” to the contract. (Id. § 1.1, at 18.) The gravamen of the Plaintiff’s claim is
not that Tetra was on the property illegally, but rather that it acted negligently in
cutting fences and leaving gates open.
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The evidence is not excluded by any of the bars set by Federal Rule of Evidence
402.
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If admitted, the Sheriff’s testimony is likely to cause unfair prejudice
to the Defendant, where the case is civil and the conduct alleged is criminal.
Accordingly, the prejudice associated with this evidence outweighs its probative
value. For the reasons discussed above, the potential criminality of Tetra’s alleged
conduct is inadmissible for purposes of proving Plaintiff’s lack of knowledge
regarding the conduct’s potential criminality.
B.

Relevance of Criminal Conduct to the Issue of Gross Negligence
Plaintiff seeks to admit Sheriff Burgess’ testimony that fence-cutting

could constitute criminal activity to help prove the issue of gross negligence. (Dkt.
# 86 at 1, 3.) In order to prevail on a gross negligence claim, Plaintiff must prove
that Tetra’s actions “depart[ed] from the ordinary standard of care to such an extent
that [they] create[d] an extreme degree of risk of harming others.” Columbia Med.
Ctr. of Las Colinas, Inc., v. Hogue, 271 S.W.3d 243, 250 (Tex. 2008). Plaintiff
must also prove that Tetra had “actual, subjective awareness of the risk involved
and chose to proceed in conscious indifference to the rights, safety, or welfare of
others.” Id. at 248. Whether Coates is permitted to refer to Tetra’s conduct as
criminal has low probative value to a trier of fact assessing whether Tetra’s actions
meet each of the requirements necessary to support a finding of gross negligence.
Further, the same Rule 403 analysis considered above applies here: the testimony
is likely to cause unfair prejudice to the Defendant; this prejudice outweighs the
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testimony’s probative value. Accordingly, the potential criminality of Tetra’s
alleged conduct is inadmissible for purposes of proving whether Tetra was grossly
negligent. If, during the course of trial, the Plaintiff is able to establish the
relevance of the testimony beyond what has been submitted here, the Court will
consider it in context at that time. However, on the record before the court at this
time, the prejudicial effects of the testimony outweigh its probative value.
CONCLUSION
Based on the foregoing, the Court GRANTS Tetra’s Motion to
Exclude Assertions of Criminal Conduct.
IT IS SO ORDERED
DATED: San Antonio, Texas, December 8, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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